RE EDRADAN JEANICE SARCO

CACV 198/2020

[2020] HKCA 1028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 198 OF 2020

(ON APPEAL FROM HCAL 1379/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 8 June 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 6 June 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 23 February 2017 rejecting the applicant’s non-refoulement claim.

2.  On 17 June 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Filipino national.  She first arrived in Hong Kong in October 2006 to work as a domestic helper and continued to be employed as such until 11 February 2016 when her last contract was prematurely terminated.  Her conditions of stay permitted her to remain in Hong Kong until 2 weeks after termination of her contract, i.e. until 25 February 2016.  She overstayed since 26 February 2016.  On 8 March 2016 the applicant surrendered to the Immigration Department and lodged a non-refoulement claim on the same day. 

4.  The applicant’s claim was based on the fear that, if she returned to the Philippines, she would be harmed or even killed by her boyfriend’s wife, as the wife was from a wealthy and powerful family.  The factual background was succinctly summarized by the Judge in [2] – [5] of the Form CALL-1 ([2020] HKCFI 1043).

5.  By Notice of Decision dated 23 February 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 11 January 2018.  The Board considered that the applicant was a credible witness and with some exceptions, accepted her evidence. 

7.  However, the Board was unable to accept the evidence that the boyfriend’s wife was still searching for the applicant.  Neither did the Board accept that she was from a wealthy or influential family.  As she had not been seen by the the applicant’s family in the Philippines since August 2017, the Board found there was no real risk of harm to the applicant.  In any event, even if there were a risk of harm, the Board considered that state protection was available and internal relocation was viable.  Therefore, the Board dismissed the applicant’s appeal on 6 June 2018 on all the applicable grounds.

Decision of the court below

8.  On 13 July 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision. 

9.  The judge held a hearing on 19 November 2019 at which the applicant attended in person.

10.  On 8 June 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [10] – [15] of the Form CALL-1 ([2020] HKCFI 1043, HCAL 1379/2018) as follows:

“ 10.  On 13 July 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and apart from repeating her claim of fear of being harmed by her friend’s wife upon her return to the Philippines, she did put forward the following grounds for her intended challenge:

(1) that the Director and the Adjudicator reached their decisions wrongly in assessing her non-refoulement claim as being not reasonable or fair as required by the Wednesbury test; and

(2) that the Adjudicator failed to give her sufficient time and chance to arrange relevant evidence for her non-refoulement claim as well as her appeal.

11.  These are however just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or how did the Adjudicator fail to give her sufficient time or opportunity to adduce relevant evidence for her claim or appeal when she never raised any such issue during her appeal hearing before the Board. As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find either of her grounds reasonably arguable for her intended application, nor any reasonably arguable basis for her to challenge the findings of the Director or the Board.

12.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of the Philippines, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”

Appeal to this Court

11.  On 17 June 2020, the applicant filed her Notice of Appeal against the Judge’s decision, in which her stated ground of appeal was that the Board disregarded her dangerous situation.

12.  On the same day, the applicant agreed in writing that the appeal could be heard by 2 judges.

13.  Pursuant to this Court’s directions of 5 October 2020, the applicant duly lodged her written submissions on appeal on 9 October 2020.  Those submissions consist largely of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case.

14.  At paragraph 2 of her submissions states that the Board ought to have considered but did not consider country of origin conditions.  Nevertheless, in those submissions the applicant did not provide any details or particulars as to how the Board failed to consider relevant country of origin conditions, let alone any particulars in support of her other arguments.

Legal principles

15.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board;

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong; and

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

16.  As mentioned earlier, the applicant did not in her Notice of Appeal or her submissions provide any particulars in support of her arguments, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

17.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its finding that there was no real risk of harm to applicant if she were to return to the Philippines.  Such a finding is within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

18.  The Board did in fact consider country of origin information, at paragraphs 68 and 69 of its decision.

19.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

20.  For these reasons, this appeal is dismissed.